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Legislation for Instream Flow Water Rights
By Cory Toye, Director of Wyoming Water Project, Trout Unlimited

    My dad was working on the Webster Ranch outside of Meeteetse when I was born. I grew up hearing stories about how he and the late, great Dan Webster would sometimes take a break from ranch chores to fish on the Greybull River or the Upper Sunshine Reservoir. As I got older, I idolized Uncle Dan and his buddies for the lifestyle they lead and the landscape they created and sustained. I also began to appreciate that meaningful and effective conservation work requires an active and healthy partnership with private landowners.
    Across Wyoming, trout fisheries benefit from private land operations. Trout Unlimited (TU) has successfully worked with landowners on restoration projects that show the needs of agriculture and trout are not incompatible – and have more in common than typically perceived. TU has completed dozens of projects in Wyoming with our partners to replace or upgrade diversion structures, install fish screens to prevent fish loss in irrigation ditches, and construct irrigation systems to improve efficiency and streamflows. These projects improve conditions for ranch operations as well as the fishery.
    However, in certain drainages streams suffer from dewatering or low flows. Trout struggle to survive in unnaturally low water conditions, characterized by blocked fish passage, warmer temperatures and excessive nutrients.
    Since the territorial days, Wyoming’s laws provide a predictable framework to determine how much water landowners can use and how the system is regulated during times of shortage. At the same time, Wyoming’s water law adapts to changing conditions and opportunities.
    In the 1950s, the Wyoming legislature enacted laws that allow water users to temporarily, or for two years, change the use of a water right if another “beneficial use” was identified – typically, construction, municipal, oil and gas development or another type of consumptive need. The temporary change mechanism allows landowners to maximize the value of a water right by responding to new demands or uses while keeping the specific water right tied to the land to which it was originally adjudicated.
    But early Wyoming water laws did not contemplate streamflows for fish as a beneficial use for water. It was not until 1986, when the existing instream flow statute was passed, that water left in stream for fishery purposes was considered a beneficial use. This resulted in a fundamental change in water law – and another example of how the law adapts to the changing demands on the resource. Unfortunately, the 1986 law did not create an effective tool for private operations. Landowners interested in using a portion of their water right to improve flows can only do so if they permanently dedicate the water right to the state. Understandably, many landowners are skeptical, if not downright hostile, to the existing instream flow law.
    While the existing water code provisions related to temporary change applications provide an answer for a water right holder to market water to an oil or gas producer, it does little for someone who’s marketable natural resource is trout. A tool is needed to maximize the value of a private landowner’s right to use water, keeping such rights attached to the land, while ensuring that non-participating water users and historical use patterns are not disrupted. A bill to be introduced in the next session of the Wyoming Legislature will give landowners a new tool to enhance both ranch stewardship and income opportunities. Bill proponents across the state see an opportunity for landowners to enhance the value of a water right by allowing the change of use to include stream flows to benefit fisheries.
    Here’s how the bill would work. If a landowner determines that temporarily using a portion of a water right to improve a fishery benefits ranch operations he must show that the change of use can be accomplished without harming any other water user. The change of use is valid for two-year terms and only the consumed portion of a water right is available for change or use, presumably 50 percent of what was historically diverted to maintain local hydrology such as late season return flows. The change of use will only be allowed after July 1 of each year to encourage water right holders to use water in a traditional manner early in the year, and then focus the streamflow component later in the summer when the fish need the water most.
    The legislation is pilot in nature – language is included to sunset the bill after ten years if not extended by the legislature and includes a cap on the amount of transactions that can occur both annually and during the pilot period. All of these provisions are designed so conservative projects are developed that avoid unintended consequences – learning as we go and ensuring that the process works for agriculture, individual ranch operations, and actually enhances a private property right.
    The fisheries in Wyoming are some of the greatest the Rocky Mountain region has to offer. Working private lands keep large sections of free flowing habitat intact for our native and wild trout. Landowners who maintain important habitat for coldwater fish can benefit through effective partnerships and improve ranch operations as well as diversifying potential revenues. This bill will solicit more partnership opportunities across the state to improve flows for fisheries across the state. Because of the split season provisions in the bill, no agricultural lands will be taken out of production. The water stays attached to the land, land fallowing is limited to seasonal late-season instances and will occur only if such an approach works for a specific ranch operation.
    I’m thankful everyday for the willingness of landowners across Wyoming to work with TU and our project partners to address ranch operation and fishery needs together. I look forward to the day I can take my now 16-month-old son fishing on the ranches across this state to teach him about the value of wild places and working landscapes. He never had the chance to meet Uncle Dan, but I guarantee he’ll think of him every time he catches a Yellowstone cutthroat trout somewhere near Meeteetse – just like I do.
2012 was one of the driest years we have seen in quite a while. The looming question now is what will conditions be like next year?! Many landowners have survived numerous droughts throughout their lifetime, and the survivors most likely had a plan in place to make it through. Below we discuss, in broad terms, dates and situations that may assist in the decision making process in order to stay ahead during the drought.    
    Developing a drought strategy begins well before the lack of moisture and expected forage is evident. Spring can be a busy time period for livestock producers, with a majority of Wyoming producers calving from February through May. Along with calving, producers should be thinking about precipitation amounts. The Natural Resources Conservation Service has snow telemetry sites throughout Wyoming to measure the amount of snow pack. The monthly report provides information on snow water equivalent compared to the average and monthly precipitation levels reported for each site. Individuals can see if the snowpack is above or below average to help determine if runoff will be adequate to provide irrigation water for the season. Knowing precipitation amounts can aid in determining moisture levels for rangeland or non-irrigated locations. This information can be accessed at wrds.uwyo.edu/wrds/nrcs/snowpack/snowmap.html. As Mike Smith always says, precipitation received in April and May will determine if grass will be available on rangelands, suggesting that decisions regarding stocking levels and grazing strategies should be determined by the end of April.
    Spring is also a time to be developing marketing strategies for livestock. On average and during normal years, slaughter cow prices peak in July. However, during periods of drought, prices tend to peak in April or May, due to the markets getting flooded in midsummer as many destock to account for a lack of feed. So, if snowpack and precipitation are low enough to cause concern and destocking is part of your drought plan, selling in late spring may provide you an edge in the market.
    Summer is a great time to collect vegetation monitoring information. Conducting vegetation monitoring during this time ensures ease of identification, as plants have seedheads, and is an opportune time to document plants in their peak production period, or maximum growth. Vegetation monitoring can be broken into two separate categories, short term and long term monitoring. Long term monitoring provides an evaluation of the overall trend of the vegetation in an area. Short term monitoring, such as stubble height, annual production, etc., can be useful in providing annual information to assist in timely decisions regarding vegetation production. Such information will likely have greater implications during drought periods when rapid decisions have to made.
    As seen throughout history, droughts may last more than one year, and each year after the first can prove even worse than the one before. Having the ability to look back on records and document the effects of various strategies will assist in future decisions for the operation.
    Hopefully feed has held out into late summer and fall. However, during dry years this often becomes the limiting factor. So questions, like do we buy feed or should we sell calves, come to mind. Looking at the hay market in normal years, prices tend to peak in late spring and drop over the summer/fall and are expected to fall through the end of the year. While over the last few drought years, prices began to rise in May/June, and the price range is greater than normal years. However, before investing in expensive feed, it is beneficial to pencil out the price that will be received for the additional gain on animals versus the cost of purchasing that feed. Another important aspect to the decision of buying feed is cattle prices in the next few years.
    For example, if cattle prices are high right now, it’s only economical to buy feed if the cost of carrying a cow will be recovered from the profit gained from selling calves in the next few years (high cattle prices). To maintain efficient gains, the animal’s nutritional needs must be met. Having your forage tested will determine if the needs will be met with that feed or if a supplement is required. The local UW Extension office has supplies and information to assist in forage testing.
    If you are interested in managing risk through purchasing insurance, one option is Pasture Range and Forage (PRF) Insurance offered through USDA Risk Management Agency.  This insurance must be purchased by Nov. 15 for the following year.  
    Winter can be an opportune time to evaluate last year’s decisions and strategies while making needed adjustments for the upcoming growing season. If you do not have a drought or grazing plan already in place, it is never too late to start! A few components of these documents may include property goals and objectives, each pasture and the forage available during a normal year (as determined by vegetation monitoring), current grazing/rotation strategy with moving dates, adjustments and potential management alternatives during drought, and planned improvements.
    Hay prices are always on our minds, especially in a dry year. If hay prices become lower during the winter, this may be a good time to purchase extra to stockpile for next year and sell it if unneeded and prices are higher (July in dry years).    
    Drought can be very stressful and the number of decisions to make can be overwhelming.  Drought plans help in managing the complexity of an operation by considering numerous ways changes can be made to survive such difficult times. So, one take home message regarding management during drought is to have a plan yet maintain flexibility and develop alternative ideas that will enable you to prevail in the face of adversity. Also, try to beat your neighbor to the punch on culling cows, selling your calves and buying hay. An applicable saying to remember is, “It pays to plan ahead. It wasn’t raining when Noah built the ark.”
    For more information on this topic, visit rma.usda.gov/policies/pasturerangeforage, droughtmonitor.unl.edu or cpc.ncep.noaa.gov/products/expert_assessment/seasonal_drought.html.
During my tenure as President of the Wyoming County Commissioners Association (WCCA) it has been my top priority to ensure that Wyoming county commissioners have at their disposal all of the information and tools that they need to make the best decisions for their counties and their constituents as well as to ensure the voice of Wyoming county commissioners is heard and duly considered in state and federal decision-making. It became apparent to me as soon as I became an elected county commissioner that one of our most important responsibilities is to understand and defend the economic base of our counties and the resulting custom and culture of our communities.
    I am very proud of the work that has been accomplished in my two years as President of WCCA, and I wanted to take this opportunity to provide you with an update on a number of natural resource related priorities of WCCA.
    One of my top priorities as President of WCCA has been to ensure that we had a close working relationship with former Governor Freudenthal, and now with Governor Mead and his staff. When local and state governments work closely together, we are most effective. I greatly value the support and communication that Governor Mead and his staff have provided to my fellow commissioners, the WCCA and me. Together, we have been effective in addressing many issues.
     As a commissioner from Sublette County, I greatly appreciate the value of having a seat at the table with the Bureau of Land Management or the Forest Service as they prepare an environmental impact statement (EIS) or planning documents. As my fellow commissioner Doug Thompson from Fremont County is fond of saying, “If you aren’t at the table, you are on the menu.”
    It is extremely important for commissioners to participate as a partner with the federal agencies in developing federal planning documents that will impact the county, both from an ecological and an economic perspective. As a cooperating agency, county commissioners have an opportunity to provide data and information, review and comment on draft documents, and express the concerns and desires of the citizens they represent to the federal agency making the decision. As an active participant in the process, we are able to work with the federal agencies with the goal of ensuring that their decisions are in the county’s best interest.
    During the 2011/2012 legislative session, WCCA worked hard to ensure the successful passage of SF 84, a bill that provided a clearer definition of the counties’ role as a cooperating agency in the National Environmental Policy Act (NEPA) process by defining the areas where commissioners have special expertise – a federal buzzword used in the NEPA process – and ensuring that counties have the ability to coordinate their local land use plans with the federal agencies.
    To ensure that we all have the tools to be an effective cooperating agency, WCCA hosted a NEPA and cooperating agency training for county commissioners, legislators, conservation districts and state agency employees in Rock Springs in June. With the help of the Governor’s Office, we were able to bring the top NEPA, BLM and Forest Service experts to provide information and helpful advice to the 100-plus participants that attended the training. WCCA will be hosting a second training in late November in Casper, and we plan to hold additional trainings on a regular basis.
    Looking back many years from now, I am sure we will all agree that sage grouse was the biggest natural resource issue of our time. Sage grouse have impacted us in ways we might not have imagined 10 years ago, including a legal challenge to the Pinedale Resource Management that could have eliminated livestock grazing and any additional oil and gas development from the Pinedale BLM Field Office.
    WCCA has taken an active role to keep the commissioners informed of the latest events and decisions on the subject and to help develop a common statewide position on a number of sage grouse related efforts. From my perspective, it is critical that we keep the sage grouse off the endangered species list, while at the same time preserving our economies and way of life, which may be jeopardized if the sage grouse is listed as endangered. This is an ongoing issue with a lot of work yet to be done.
    I feel that it is important for local government to be actively involved in litigation when our economies and way of life are at stake. To that end, WCCA has participated as an amicus curiae, or friend of the court, in the state of Wyoming’s litigation effort to overturn the Clinton Roadless Rule. WCCA is also involved as an amicus curiae in the Rock Springs Grazing Association’s effort to ensure that the BLM is properly managing wild horses in the Green River Field Office, and in litigation in Utah challenging Secretary Salazar’s Wildlands Order.
    From establishing quarterly meetings with the Wyoming BLM State Director to developing relationships with top federal agency personnel in Washington D.C., I have made it a priority to ensure that Wyoming commissioners have access to the folks who are making the decisions that have an impact here on the ground in Wyoming.
    It means a tremendous amount to me personally to have the opportunity to serve as the President of WCCA the last two years. I have had an opportunity to meet and work with some tremendously talented folks here in Wyoming and across the nation. I am very proud of the work we have accomplished on behalf of Wyoming’s counties and their residents. We have worked hard to develop informed positions that we can all support and to push hard to see those positions are reflected in final decisions.
    The current makeup of WCCA has changed. Two counties have gone from three to five county commissioners (Laramie and Carbon) in this past election. We now have 91 county commissioners statewide and 19 of those are newly elected commissioners. Of the new commissioners elected, one is a democrat, one is an independent, and 17 are republicans; seven are women and 12 are men. Five counties will have a new chairman, as their current chair will not be returning to their elected seat in January.
    My point in sharing this with you is that I encourage you to get to know your county commissioners. They want to hear your input and perspectives on local issues. Consider getting involved in county government.
    Even though my tenure as President has come to an end, I remain committed to participating in an organization that I believe in. The county commissioners across Wyoming are some of the finest people I know. I trust them and their judgment. There is much work to be done, and your county commissioners are a tremendous resource, as you can see from all the items I discussed above. The experience of being the President of the Wyoming County Commissioners Association is an experience that I will never forget. I have learned so much about our great state and the people of Wyoming. I appreciate the opportunity to have served.

Sage Grouse Conservation Makes Sense
By Bob Budd, Wyoming Wildlife and Natural Resource Trust Executive Director

    Five years ago, the state of Wyoming took an unprecedented step in the arena of species conservation. Rather than waiting for the federal government or the court system to mandate the outcome of an “endangered” listing, we took a proactive approach to address sage grouse conservation within the context of social and economic realities. The result was a statewide plan that focused on protection of birds and habitat where birds do exceedingly well and, at the same time, allowing economic activity in areas where minerals, recreation, agriculture and other enterprises make the most sense.
    From the start, no one cared much for this approach. Some environmental groups insisted the bird had been sold down the river, while some industry groups lamented the fact that they could no longer work in Wyoming. Despite the saber rattling at the time, the end result is that we are managing both the species and economic activity today, in a manner that gives equal consideration to both objectives.
    There is really no biological reason to believe sage grouse are in danger of complete extirpation. Bird numbers are robust in many parts of the range, though there are many extreme challenges to the species in others. Fire and cheatgrass invasions in California may doom the few birds there, particularly after last summer’s season of hell. Some populations have seen serious declines due to mineral development. And, the impact of climate change and habitat conversion remains largely unknown.
    The problem with managing sage grouse is not so much our ability to care for the species and its habitat. Rather, the problem in interpretation of the Endangered Species Act and applications that may either be chosen by the Fish and Wildlife Service or mandated by federal courts. The Wyoming model applies the logic that conservation of any species is best handled closest to home and that the greatest opportunity to make a difference occurs where the species does best. A solid conservation plan in Wyoming will positively impact nearly half the birds in the world, even when using the “core area” strategy that allows intensive economic activity in some areas inhabited by sage grouse.
    The alternative to this approach is the heavy-handed influence of the Endangered Species Act, and some people have asserted that they are willing to take their chances with the Act. That may well be, but it is important to understand what that roll of the dice means in the event of a listing.
    If listed as “endangered,” every sage grouse everywhere is protected equally under the law. Wyoming will be treated no differently than any other state. Every acre of suitable habitat is protected. Every action that creates a federal nexus (think federal minerals or something as innocuous as a road that intersects a BLM 40) will require formal consultation with the Fish and Wildlife Service. Restrictions on natural resource use will almost assuredly be more restrictive. And, while actions on private lands will not require additional permitting, a “taking” of sage grouse is punishable wherever it occurs, with severe fines and potential criminal liability that can attach, including jail time and additional fines. By the way, the citizen suit provision allows environmental groups to sue to compel prosecution of violations of the Act.
    “Take” is loosely defined in the law as any action that “harms” or “harasses” the species – something that should give one pause when thinking about what might constitute “harassment” of a bird that uses sound and color to attract a mate and which may migrate long distances to seasonal range. Finally, the Endangered Species Act is colorblind to the realities of economics, culture and society. The Spotted owl gave us all a clear picture of how that plays out.
    The people of Wyoming, working with all interests at the table, have chosen a proactive conservation strategy that is firmly based in the biology of the species and, at the same time, recognizes economics and culture. Industry, agriculture and other primary resource users have assumed a leadership role in creating and implementing strategies that minimize impacts, and in some cases, forego development in deference to conservation. Cooperative efforts to maintain and enhance habitat have emerged throughout the state, and innovative strategies to build mitigation banking and incentives for conservation are currently in development.
    At no time in history have so many diverse interests become invested in the well being of a species. Between the actions of private landowners, federal permittees, industry leaders and conservation groups, the future for sage grouse could not be better. While this strategy requires vigilance and some sacrifice, there is little doubt it will work long into the future. Yes, there are changes and tweaks that have to be made, but we have the ability to do so in Wyoming, with a process that is open and inclusive of all interests.
    As for the alternative – protection under the Endangered Species Act – all of the action, funding, dedication and commitment to sage grouse conservation by that diverse group of stakeholders will likely be lost. That may be why you don’t see sage grouse rolling dice.